Opinion
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743).
December 14, 2010
THIS MATTER is before the Court on the Joint Motion for Final Approval of Collective Action Settlement, filed December 3, 2010 [ECF No. 419], and the Motion for Partial Reimbursement of Costs to Class Counsel and Payment of $500 Each to the 48 Collective Action Members Deposed, filed December 3, 2010 [ECF No. 421]. A hearing on the motions took place on Friday, December 10, 2010. For the reasons set forth herein, the motions are GRANTED. Baldozier Plaintiffs Scott Donaldson, Jok Nicholson, Troy Hansen, Eric Stack, and Craig Thayer and Schultz Plaintiff Robert Schultz, individually and on behalf of others similarly situated who have consented to join the Baldozier and Schultz collective actions (collectively, with Plaintiffs, "Collective Action Members"), and Defendant American Family Mutual Insurance Company ("Defendant" or "American Family") (collectively "the Parties") have moved for an order granting final approval to the terms of settlement in the above-captioned action for minimum wage and overtime compensation arising under the Fair Labor Standards Act of 1938 ("FLSA"), and dismissing the case in its entirety as to all Collective Action Members in Baldozier and Schultz.
This Court, having reviewed the Parties' Joint Motion For Final Approval of FLSA Settlement And Dismissal Of Claims and the exhibits attached thereto ("Joint Motion"), and having reviewed the files, records, and proceedings in this action, finds as follows:
1. The settlement of the Baldozier and Schultz actions was reached through arm's-length bargaining.
2. Sufficient investigation, discovery, and motion practice has been completed to enable the Parties, through their counsel, to make educated decisions regarding: (i) the strengths and weaknesses of their respective positions; and (ii) the reasonableness of the terms of settlement in light of those respective strengths and weaknesses and the cost and risk of proceeding with litigation through trial.
3. The Parties have at all times been represented by counsel familiar with this case and experienced in similar litigation.
4. Collective Action Members in the Schultz and Baldozier actions were sent a written Notice of Settlement, and were given 30 days to withdraw their consents to join these actions, if they desired. That Notice of Settlement constituted the best notice practicable under the circumstances, was accomplished in all material respects, and fully met the requirements of the FLSA, due process, the United States Constitution, and any other applicable law.
5. The number of opt-in class members who chose to withdraw their consents to join (2) is minimal when compared to the size of the Collective Actions as a whole (150).
6. The terms and conditions of settlement set forth in the Joint Motion and the Settlement Agreement are a fair and reasonable resolution of a bona fide dispute arising under the FLSA, and are in the best interest of the Parties in light of the foregoing, and the inherent risks and costs associated with proceeding with litigation through trial.
7. This Order incorporates by reference the definitions in the Settlement Agreement such that all capitalized terms used herein shall have the same meanings as set forth in the Settlement Agreement.
ACCORDINGLY, IT IS HEREBY:
ORDERED that Pursuant to the procedures for a collective action under the FLSA, and as otherwise required, this Court hereby GRANTS FINAL APPROVAL of the terms of the Settlement Agreement, the terms of which are hereby incorporated herein and made an Order of the Court. It is
FURTHER ORDERED that the claims of the Collective Action Members who returned a timely Claim Form accepting the settlement ("Qualified Collective Action Members") shall be DISMISSED WITH PREJUDICE. Defendant shall make payment to those individuals, in accordance with the terms of the Settlement Agreement. The 111 Baldozier Collective Action Members who previously signed and returned a letter accepting the settlement circulated by Baldozier counsel are deemed to be Qualified Collective Action Members unless they withdrew their Consents to Join. A list of the 143 Qualified Collective Action Members is attached hereto as Exhibit 1. It is
FURTHER ORDERED that payment of $500 each to persons who were deposed and accepted the settlement is reasonable. The list of such individuals is attached hereto as Exhibit 2. Such payments are not wages for work performed by these individuals for American Family, but instead are recognition of the time and effort expended by these individuals to further Plaintiffs' lawsuits. It is
FURTHER ORDERED that the equal distribution of the Net Settlement Fund (after partial reimbursement of costs to attorneys and payment of $500 each to the 48 persons who were deposed and timely accepted the settlement, and deduction of $1,250 each for the two persons who timely withdrew their consents to join), among Qualified Collective Action Members is reasonable. It is
FURTHER ORDERED that the claims of the two Collective Action Members who timely withdrew their Consents to Join the Baldozier and Schultz actions (including the claims of named Plaintiff Patrick Kurtenbach) (collectively, "Withdrawing Collective Action Members") shall be DISMISSED WITHOUT PREJUDICE, and the statute of limitations shall be tolled for these persons for a period of 30 days from the date of this Order. A list of the two Withdrawing Collective Action Members is attached as Exhibit 3. Counsel for Collective Action Members in the actions no longer represent those persons. Those persons are free to retain counsel of their choosing and to re-file their own action in an appropriate court as permitted by law and applicable rules of procedure. The FLSA collective actions conditionally certified in the Baldozier and Schultz actions are decertified with respect to the claims of the Withdrawing Collective Action Members. It is
FURTHER ORDERED that the claims of the 5 Collective Action Members who did not respond to the Notice of Settlement (other than the 111 Baldozier Collective Action Members who previously signed and returned a letter accepting the settlement and did not withdraw their Consents to Join) despite diligent efforts by Plaintiffs' counsel to secure a response, shall be dismissed with prejudice. No payment shall be made to those persons. Those Non-Responding Collective Action Members are listed on Exhibit 4. It is
FURTHER ORDERED that the amount of $71,250 allocated to Plaintiffs' counsel for partial reimbursement of costs, and expenses is reasonable. Defendant shall make such payment in accordance with the Settlement Agreement. It is
FURTHER ORDERED that all required settlement payments shall be made within 7 days after the Effective Date of the Settlement Agreement, pursuant to the Settlement Agreement. If these payments are not timely made, Counsel for Collective Action Members may request that this Order be vacated. It is
FURTHER ORDERED that the Court approves and adopts the Release set forth in the Settlement Agreement. By operation of the entry of this Order, with the limited exception of the two Withdrawing Collective Action Members (listed on Exhibit 3), all Collective Action Members, by virtue of this Order, have forever and fully released American Family, its owners, stockholders, predecessors, successors, assigns, agents, directors, officers, employees, representatives, attorneys, parent companies, divisions, subsidiaries, affiliates, benefit plans, plan fiduciaries and/or administrators, and all persons acting by, through, under or in concert with any of them, including any party that was or could have been named as a defendant in the Baldozier or Schultz lawsuits, from any and all past and present matters, claims, demands, and causes of action of any kind whatsoever, whether at common law, pursuant to statute, ordinance or regulation, in equity or otherwise, and whether arising under federal, state, or other applicable law, which they have or might have, known or unknown, asserted or unasserted, of any kind whatsoever, that are based upon or arise out of the facts, acts, transactions, occurrences, events or omissions alleged in the Baldozier or Schultz actions ("Released Claims"). The Released Claims include without limitation claims asserted in the Baldozier and Schultz actions and any other claims based on alleged misclassification under state or federal law governing overtime pay, exempt status, failure to make payments due to Collective Action Members had they been classified as nonexempt, failure to keep records of hours worked or compensation due, and penalties, liquidated damages, interest, costs, and attorneys' fees for any of the foregoing. All Collective Action Members who did not timely withdraw their Consents to Join, are hereby enjoined from prosecuting any Released Claims against American Family. It is
FURTHER ORDERED that the Court acknowledges that American Family at all times denied any and all wrongdoing and liability, and that American Family agreed to resolve this action solely to avoid the cost of continued litigation. It is
FURTHER ORDERED that, without affecting the finality of this Order, this Court retains continuing jurisdiction over the Parties and the construction, interpretation, implementation, and enforcement of the Settlement Agreement and over the administration and distribution of settlement benefits. Subject to that retention, and except as to the Withdrawing Collective Action Members (whose claims are dismissed without prejudice) the Schultz and Baldozier actions are dismissed with prejudice, each party to bear his, her or its own costs and attorneys fees except as provided above in paragraph 8. It is
FURTHER ORDERED that the Clerk of the Court shall enter judgment in the Baldozier and Schultz actions according to the form of Judgments attached hereto as Exhibits 5 and 6.
Dated: December 14, 2010
Exhibit 1 List of Qualified Collective Action Members
Baldozier
1. Janice E. Alspach
2. Larry L. Anderson
3. Steve D. Anderson
4. Heather R. Atkins-Miller
5. Jeffrey Auler
6. Michelle H. Axelrod
7. Rick D. Bailey
8. Rocky Baldozier
9. Douglas J. Bartholomew
10. Allan A. Batson
11. Jeff A. Black
12. Clarence O. Boomgarden
13. John P. Byrne
14. Ronald E. Chester
15. Mark E. Cooper
16. Donald J. Crane
17. George Thomas Cribbins
18. Jeffery Paul DeBuck
19. David D. DeCamp
20. Mary C. DeGrasso
21. Harald H. Dirksen
22. Scott Donaldson
23. Wesley B. Edgar
24. Darryl R. Edwards
25. Ben S. Ekrem
26. Mark A. Evans
27. Vincent A. Espinoza
28. Ricky W. Fryson
29. Charles V. Gambrel
30. Richard T. Garcia
31. Gary Garnjobst
32. Scot L. Gish
33. Jonathan Emory Graham
34. Thomas R. Greenwell
35. Todd C. Greenwell
36. Barbara E. Grubb
37. Kenneth L. Halterman
38. Michael W. Hansen
39. Troy A. Hansen
40. Donovan W. Hartwig
41. Allen W. Heling
42. Lauren L. Hiedecker
43. William H. Hill
44. Paul W. Hornbacher
45. Michael R. Horne
46. Gregory W. Houk
47. Kenneth L. House
48. Robert S. Huebner
49. Alan G. Inwood
50. Kimberly Jakubowski
51. Michael J. Jensen
52. Brian K. Johnson
53. Reed S. Johnson
54. Robert Kamishlian
55. Marcia M. Kimmerle
56. Gene A. Knudtson
57. Edward J. Krenk
58. Douglas H. Ladwig
59. Andrew S. Lattocha
60. Douglas B. Lawler
61. Jerimie A. Logan
62. Larry D. Lustfeldt
63. Christine A. Lynd
64. Daniel L. Mardis
65. Andrew R. Mehlhop
66. Mark B. Meixner
67. Richard T. Michalowski
68. Thomas A. Mijal
69. Jeffrey R. Miller
70. Max D. Mills
71. Christopher J. Moran
72. George E. Morey
73. Susan A. Munson
74. Richard L. Neveau
75. Michael Ray Newcomb
76. Jok Nicholson
77. Mark J. Nygaard
78. Dan K. Palmer
79. Robert L. Parlock
80. Jeffrey J. Parmeter
81. Fredrick L. Passant
82. Eugen M. Petculescu
83. Brian P. Porter
84. Michael W. Pottorff
85. Robert Reynolds
86. Martin J. Roby
87. Andrea A. Rodgers
88. Stephen B. Roscoe
89. Rodger L. Runk
90. Jennifer L. Sailor
91. Charles A. Sandoval
92. Chad W. Schmidt
93. Gregory B. Sharp
94. Daniel J. Shelby
95. Rodney R. Simpson
96. Larry G. Sisson
97. William L. Spangler
98. Richard L. Sparks
99. Brandon S. Spitler
100. Eric Stack
101. Jason C. Story
102. Kurtis A. Stowe
103. Travis L. Stuckenschneider
104. Karen L. Swedeen
105. Paul G. Talbot
106. Terrence L. Tarras
107. Gary A. Taylor
108. Duane L. Teetor
109. Craig A. Thayer
110. David A. Thomas
111. Daryl L. Tietz
112. Phillip E. Tramel
113. Todd J. Trecek
114. William E. True, Sr.
115. Steven D. Underwood
116. Brenda S. Voight
117. Hilton Weathers
118. Dean A. Wildman
119. David A. Wilson
120. Wayne L. Woebkenberg
121. Randy L. Wolden
122. Eugene B. Yeager
123. G. Terrance YoungSchultz
124. Michael E. Carroll
125. Rocky Fenner
126. Simon Heide
127. Vern Hughes
128. Jessica Johnson
129. James Judycki
130. Frederick Kube
131. William Kurczodyna
132. David Melendez
133. Howard Miller
134. Marcia Myrvik
135. Richard Norwood
136. William Potesak
137. John P. Riordan
138. Larry R. Schrage
139. Robert Schultz
140. Brent R. Sherman
141. Christopher Tumasmith
142. Doug Wilson
143. Paige Yearick
EXHIBIT 2 Qualified Collective Action Members that were Deposed
Baldozier1. Rocky Baldozier
2. Clarence Boomgaarden
3. Scott Donaldson
4. Wesley Edgar
5. Vincent Espinoza
6. Rick Fryson
7. Scot Gish
8. Michael Hansen
9. Troy Hansen
10. Donovan Hartwig
11. Allen Heling
12. Kimberly Jakubowski
13. Reed Johnson
14. Brian Johnson
15. Larry Lustfeldt
16. Jeffrey Miller
17. Max Mills
18. Thomas Mijal
19. George Morey
20. Richard Neveau
21. Jok Nicholson
22. Mark Nygaard
23. Dan Palmer
24. Jeffrey Parmeter
25. Robert Reynolds
26. Stephen Roscoe
27. Brandon Spitler
28. Eric Stack
29. Paul Talbot
30. Terry Tarras
31. Craig Thayer
32. David Thomas
33. William True
34. Daryl Teitz
35. Hilton Weathers
36. David Wilson
37. Randy Wolden
38. Eugene YeagerSchultz
39. Vern Hughes
40. Jessica Johnson
41. William Kurczodyna
42. William Potesak
43. John Riordan
44. Larry Schrage
45. Robert Schultz
46. Brent Sherman
47. Christopher Tumasmith
48. Douglas Wilson
Exhibit 3 List of Withdrawing Collective Action Members
Baldozier1. Patrick J. Kurtenbach
2. Rick D. Hardbarger
Exhibit 4 List of Non-Responding Collective Action Members
Baldozier1. Kevin G. Ball
2. Craig R. Kirby
3. Christian D. Mulinix
4. George S. WarrenSchultz
5. Enrique Farfan
Exhibit 5 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743)IN RE AMERICAN FAMILY MUTUAL INSURANCE COMPANY OVERTIME PAY LITIGATION
[PROPOSED] FINAL JUDGMENT This Order Relates to Baldozier v. American Family as set forth below IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADOCivil Action No. 04-cv-2174-WYD-CBS
ROCKY BALDOZIER, ERIC STACK, ROBERT REYNOLDS, and JOK NICHOLSON, on behalf of themselves and all others similarly situated, Plaintiffs, v. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant. In accordance with, and subject to, the Order Granting Final Settlement Approval and Dismissing Case, judgment is hereby entered as follows:1. The complaint and each claim for relief stated therein of the persons listed on Exhibit A attached hereto are hereby dismissed with prejudice and without costs to any party except as provided for in the Order Granting Final Settlement Approval and Dismissing Case.
2. The complaint and each claim for relief stated therein of Patrick Kurtenbach and Rick Hardbarger are dismissed without prejudice and without costs to any party.
3. The statute of limitations for the claims made by Patrick Kurtenbach and Rick Hardbarger shall be tolled for 30 days from the date of this Judgment.
4. No party shall claim attorneys' fees against another party.
Dated at Denver, Colorado this ____ day of _____________, 2010.
_____________________________ Clerk of CourtExhibit A List of Collective Action Members in Baldozier whose Complaints and Claims for Relief are Hereby Dismissed with Prejudice
1. Janice E. Alspach
2. Larry L. Anderson
3. Steve D. Anderson
4. Heather R. Atkins-Miller
5. Jeffrey Auler
6. Michelle H. Axelrod
7. Rick D. Bailey
8. Rocky Baldozier
9. Kevin G. Ball
10. Douglas J. Bartholomew
11. Allan A. Batson
12. Jeff A. Black
13. Clarence O. Boomgarden
14. John P. Byrne
15. Ronald E. Chester
16. Mark E. Cooper
17. Donald J. Crane
18. George Thomas Cribbins
19. Jeffery Paul DeBuck
20. David D. DeCamp
21. Mary C. DeGrasso
22. Harald H. Dirksen
23. Scott Donaldson
24. Wesley B. Edgar
25. Darryl R. Edwards
26. Ben S. Ekrem
27. Mark A. Evans
28. Vincent A. Espinoza
29. Ricky W. Fryson
30. Charles V. Gambrel
31. Richard T. Garcia
32. Gary Garnjobst
33. Scot L. Gish
34. Jonathan Emory Graham
35. Thomas R. Greenwell
36. Todd C. Greenwell
37. Barbara E. Grubb
38. Kenneth L. Halterman
39. Michael W. Hansen
40. Troy A. Hansen
41. Donovan W. Hartwig
42. Allen W. Heling
43. Lauren L. Hiedecker
44. William H. Hill
45. Paul W. Hornbacher
46. Michael R. Horne
47. Gregory W. Houk
48. Kenneth L. House
49. Robert S. Huebner
50. Alan G. Inwood
51. Kimberly Jakubowski
52. Michael J. Jensen
53. Brian K. Johnson
54. Reed S. Johnson
55. Robert Kamishlian
56. Marcia M. Kimmerle
57. Craig R. Kirby
58. Gene A. Knudtson
59. Edward J. Krenk
60. Douglas H. Ladwig
61. Andrew S. Lattocha
62. Douglas B. Lawler
63. Jerimie A. Logan
64. Larry D. Lustfeldt
65. Christine A. Lynd
66. Daniel L. Mardis
67. Andrew R. Mehlhop
68. Mark B. Meixner
69. Richard T. Michalowski
70. Thomas A. Mijal
71. Jeffrey R. Miller
72. Max D. Mills
73. Christopher J. Moran
74. George E. Morey
75. Christian D. Mulinix
76. Susan A. Munson
77. Richard L. Neveau
78. Michael Ray Newcomb
79. Jok Nicholson
80. Mark J. Nygaard
81. Dan K. Palmer
82. Robert L. Parlock
83. Jeffrey J. Parmeter
84. Fredrick L. Passant
85. Eugen M. Petculescu
86. Brian P. Porter
87. Michael W. Pottorff
88. Robert Reynolds
89. Martin J. Roby
90. Andrea A. Rodgers
91. Stephen B. Roscoe
92. Rodger L. Runk
93. Jennifer L. Sailor
94. Charles A. Sandoval
95. Chad W. Schmidt
96. Gregory B. Sharp
97. Daniel J. Shelby
98. Rodney R. Simpson
99. Larry G. Sisson
100. William L. Spangler
101. Richard L. Sparks
102. Brandon S. Spitler
103. Eric Stack
104. Jason C. Story
105. Kurtis A. Stowe
106. Travis L. Stuckenschneider
107. Karen L. Swedeen
108. Paul G. Talbot
109. Terrence L. Tarras
110. Gary A. Taylor
111. Duane L. Teetor
112. Craig A. Thayer
113. David A. Thomas
114. Daryl L. Tietz
115. Phillip E. Tramel
116. Todd J. Trecek
117. William E. True, Sr.
118. Steven D. Underwood
119. Brenda S. Voight
120. George S. Warren
121. Hilton Weathers
122. Dean A. Wildman
123. David A. Wilson
124. Wayne L. Woebkenberg
125. Randy L. Wolden
126. Eugene B. Yeager
127. G. Terrance Young
Exhibit 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Master Docket No. 06-cv-17430-WYD-CBS (MDL Docket No. 1743)IN RE AMERICAN FAMILY MUTUAL INSURANCE COMPANY OVERTIME PAY LITIGATION
[PROPOSED] FINAL JUDGMENT This Order Relates to Schultz v. American Family as set forth below IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION ROBERT SCHULTZ, individually and on behalf of all others similarly situated, Plaintiff, v. Case No. 04-C-5512 AMERICAN FAMILY MUTUAL Judge Ronald Guzman INSURANCE COMPANY, Magistrate Judge Nan R. Nolan Defendant. In accordance with, and subject to, the Order Granting Final Settlement Approval and Dismissing Case, judgment is hereby entered as follows:1. The complaint and each claim for relief stated therein of the persons listed on Exhibit A attached hereto are hereby dismissed with prejudice and without costs to any party except as provided for in the Order Granting Final Settlement Approval and Dismissing Case.
2. No party shall claim attorneys' fees against another party.
Dated at Denver, Colorado this ____ day of _____________, 2010.
_____________________________ Clerk of CourtExhibit A List of Collective Action Members in Schultz whose Complaints and Claims for Relief are Hereby Dismissed with Prejudice
1. Michael E. Carroll
2. Enrique Farfan
3. Rocky Fenner
4. Simon Heide
5. Vern Hughes
6. Jessica Johnson
7. James Judycki
8. Frederick Kube
9. William Kurczodyna
10. David Melendez
11. Howard Miller
12. Marcia Myrvik
13. Richard Norwood
14. William Potesak
15. John P. Riordan
16. Larry R. Schrage
17. Robert Schultz
18. Brent R. Sherman
19. Christopher Tumasmith
20. Doug Wilson
21. Paige Yearick